Judgment

K. MUKHERJEA J. : This appeal is directed against a judgment and decree of a Division Bench of the Madras High Court dated the 31st January 1950, reversing on appeal, those of the Subordinate Judge, Bapatla, passed in Original Suit No. 96 of 1944.

2. The suit, out of which the appeal arises was commenced by the infant plaintiff, now appellant before us, represented by his maternal uncle as next friend, for recovery of possession on partition, of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint family properties of himself and his father, the defendant No. 1. In which he had an equal share with the latter. The plaintiff is admittedly the son of defendant No. 2, who is one of the legally married wives of defendant No. 1 but the latter denied that he was the father of the plaintiff and charged the plaintiffs mother with misconduct.

The defendant No. 3 in the suit, who is the other living wife of defendant No. 1 and has no issue of her own, is alleged to have developed illfeeling and jealousy towards the plaintiff and his mother and poisoned her husband s mind against them, so much so that the defendant No. 1 had actually instituted a suit in the court of the District Munsif at Ongole questioning the legitimacy of the plaintiff. It was because of such conduct on the part of defendant No. 1 that the present suit had to be instituted.

3. The defence put forward by defendant No. 1 to the claim of the plaintiff was a denial of his paternity, and the whole controversy in the suit centered round the point as to whether the plaintiff was the legitimate son of defendant No. 1 by defendant No. 2 his second wife. On the admitted facts of the case, there could be no question that the operation of Section 112 of the Indian Evidence Act would be attracted and the plaintiff being born during the continuance of a lawful wedlock between his mother and his alleged father a conclusive presumption of legitimacy would arise, unless it was proved that the parties to the marriage had no access to each other at any time when he could have been begotten. The point for determination, therefore, was whether on the evidence adduced in the case the defendant No. 1 upon whom the burden of proving non-access admittedly lay, had succeeded in discharging that burden.

The trial court decided this point in favour of the plaintiff and against defendant No. 1 and in that view substantially allowed the plaintiff s claim. On an appeal being taken against this decision by defendant No. 1 to the Madras High Court, the learned Judges, who heard the appeal, came to the opposite conclusion and held that from the facts and circumstances of the case an inference of non-access between the husband and the wife could reasonably be drawn. The result was that the decision of the trial court was reversed and the plaintiff s suit dismissed. It is the propriety of this decision of the Madras High Court that is challenged before us on behalf of the plaintiff, to whom special leave to file the appeal in forma pauperis was granted by this court.

4. It may be stated at the outset that the presumption, which Section 12 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access against connote, as has been held by the Privy Council : Vide --- Karapaya v. Mayandi , AIR 1934 PC 49 (A), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant